Civil asset forfeiture power under fire in legislature; good

Local economy grinds to a halt as a Tennessee police officer pulls over a motorist. (Photo WHBQ Fox 13 Memphis)

[A defense of local economy must have in view a defense of other local economies in other parts of Tennessee, and the movement of people freely among them — from town to town, county to county. The civil asset forfeiture statute out of Nashville allows city, county and conjoined federal officers to play the role of highwaymen — legally. The biggest threat to the free movement of people is the cop, emboldened by his superiority at law, his special protections as an assailant and assaulting party, and the authority to steal from people on the highways without having to file any criminal charge against the citizen. The statute is under assault in the general assembly. It is high time. — DJT]

Tennessee has joined the growing number of states considering reforming state asset forfeiture laws.

Last week, the state Senate Judiciary Committee held a hearing on the matter, and law enforcement lobbyists predictably showed up in force to defend their ability to “police for profit.”

Current Tennessee asset forfeiture laws allow state and local law enforcement agencies to take assets allegedly related to criminal activity and keep the proceeds, even absent a criminal conviction.

The Institute for Justice gives Tennessee asset forfeiture laws a D-.

Tennessee has broad civil forfeiture laws that fail to protect the rights of property owners. There, the government must establish by only a preponderance of the evidence that property is related to a crime and subject to forfeiture. Tennessee also effectively presumes owners are guilty, as the property owner bears the burden of proof for innocent owner claims. And, while it cannot be used to supplement salaries, local drug enforcement nonetheless keeps 100 percent of property forfeited, and there is no requirement to collect or report data on the use of forfeiture or its proceeds in Tennessee.

According to an AP report, Shelby County prosecutor Steve Jones laughably called this process “government at its very best,” and trotted out the standard “crime will increase” scare tactic.

“If you want to make a difference for our communities, take away criminal proceeds forfeiture funding,” he said. “You’ll make a huge difference; it just won’t be a positive difference. The criminals will thank you.”

Of course, proposed reforms do no such thing. Police would still be able to seize assets from convicted criminals. But they would no longer have the power to simply grab somebody’s stuff without proving it was connected to actual criminal activity in court first.

‘Isolated incidents’ of abuse?

Opponents of the current asset forfeiture process often call it “policing for profit.” They argue that lure of asset forfeiture money incentivizes police to direct manpower and resources toward actions that promise a payoff instead of focusing on other priorities that directly impact the safety of the community.

Knoxville Police Chief David Rausch said reformers are overreacting to “isolated incidents” of abuse and launched into some hyperbolic fear-mongering during the hearing.

“To take away this ability to impact crime in our state because of a few bad apples would be a travesty,” he said. “It would make Tennessee the haven for criminal gangs and a hub for criminal enterprise.”

In fact, the entire Tennessee asset forfeiture system is abusive on its face. It flips due process on its head, forcing the accused to prove their innocence.

Sen. Mike Bell of Riceville blasted law enforcement, accusing police lobbyists of false dichotomy. He said reforms were simply meant to protect innocent people who get caught up in the system.

“It’s almost like you were trying to set up that you’re either for us or you’re for the criminals,” Bell said.

Reforms in New Mexico

Recent reforms to New Mexico’s asset forfeiture laws serve as a model. The new law only allows seizures under the following circumstances:

(1) the person was arrested for an offense to which forfeiture applies;

(2) the person is convicted by a criminal court of the offense; and

(3) the state establishes by clear and convincing evidence that the property is subject to forfeiture

Other reform proposals deincentivize law enforcement by depositing proceeds from legitimate asset forfeiture into the general fund instead of directly into police department budgets.

They also need to be aware of a federal loophole police will crawl through if not pulled shut. Any reform needs to include provisions that stop state and local law enforcement from turning cases over to the federal government, thereby circumventing any restrictions placed on asset forfeiture by the state.

Bouncing cases to feds

This very scenario plays out frequently in states with strong asset forfeiture laws like California. Police simply avoid civil liberty protections and limits on the revenue they can collect by turning cases involving seized assets over to the feds. In return, state and local agencies get 80 percent of the proceeds back through the Federal Equitable Sharing Program.

As the Tenth Amendment Center previously reported the federal government has inserted itself into the California’s asset forfeiture debate. The feds clearly want the policy to continue.

Why?

We can only guess. But perhaps the feds recognize paying state and local police agencies directly in cash for handling their enforcement would reveal their weakness. After all, the federal government would find it nearly impossible to prosecute its unconstitutional “War on Drugs” without state and local assistance. Asset forfeiture “equitable sharing” provides a pipeline the feds use to incentivize state and local police to serve as de facto arms of the federal government by funneling billions of dollars into their budgets.

Tennessee legislators should be aware of this loophole and include language in their reform bills to close it.

— David Tulis hosts a talk show weekdays in Chattanooga from 9 to 11 a.m. on 1240 AM Hot News Talk Radio, covering local economy and free markets in Chattanooga and beyond. “Support this site and my radio station on the real airwaves in Chattanooga, on your smartphone via the TuneIn radio app, or online at Hotnewstalkradio.com. You back me by patronizing my advertisers with specific reference to me. Even better, encourage independent media by having me run commercials for your business. Also, buy me a coffee at the tip jar.”

About The Author

David Tulis hosts a talk show weekdays 1 to 3 p.m. on NoogaRadio 92.7 FM 95.3 FM HD4 (digital), covering local economy and free markets in Chattanooga and beyond. Nothing on this website should be construed as legal advice; all discussions about law and practices favoring a free people are opinion and educational; if you want legal advice consult a licensed attorney.